The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:23-cv-00283-MR-WCM
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) ORDER OF
) DEFAULT JUDGMENT
ONE SCCY CPX-1 PISTOL seized )
from Kenneth Garrison on or about )
May 10, 2023, in Henderson County, )
North Carolina; ONE BERETTA PX4 )
STORM PISTOL seized from Kenneth )
Garrison on or about May 10, 2023, )
in Henderson County, North )
Carolina; ONE FN PS90 RIFLE seized )
from Kenneth Garrison on or about )
May 10, 2023, in Henderson County, )
North Carolina; and 460 ROUNDS OF )
ASSORTED AMMUNITION seized on )
or about May 10, 2023, in Henderson )
County, North Carolina, )
)
Defendants. )
________________________________ )
THIS MATTER is before the Court on the Government’s Motion for
Default Judgment of Forfeiture. [Doc. 8].
By the present motion, the Government moves pursuant to Fed. R. Civ.
P. 55(b)(2) for a default judgment of forfeiture as to the SCCY CPX-1 9mm
pistol (bearing serial number 100420), the Beretta PX4 Storm 9mm pistol
(bearing serial number PX419051PB), the FN Herstal PS90 5.7x28 mm rifle
(bearing serial number FN114064), and 460 rounds of assorted ammunition
(collectively, “the Defendant Firearms and Ammunition”) identified in the
Government’s Verified Complaint.
FACTUAL BACKGROUND
The following is a recitation of the relevant, admitted facts.1
On May 9, 2023, Kenneth Garrison purchased a Palmetto State
Armory model PA-15 receiver and a Smith and Wesson model M&P 57
5.7x28mm pistol from P&A Pawn and Gun (“P&A”) in Hendersonville,
North Carolina. [Doc. 1 at ¶ 9]. When Mr. Garrison made the
purchase, he completed an ATF Form 4473. [Id. at ¶ 10]. P&A
entered Mr. Garrison’s information into the National Instant Criminal
Background Check System (“NICS”). [Id. at ¶ 11].
Shortly after Mr. Garrison left the pawn shop, Special Agent Kevin
Allred with the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) received a phone call from P&A, which advised that NICS
1 Where, as here, an entry of default occurs, the defaulted party is deemed to have
admitted all well-pleaded allegations of fact in the complaint. See Ryan v. Homecomings
Fin. Network, 253 F.3d 778, 780 (4th Cir. 2011); see also Fed. R. Civ. P. 8(b)(6) (“An
allegation—other than one relating to the amount of damages—is admitted if a responsive
pleading is required and the allegation is not denied”). Thus, the factual allegations in
the Government’s Verified Complaint [Doc. 1] are deemed admitted as true.
2
indicated that Mr. Garrison had been denied, even though P&A believed
that NICS had originally found that Mr. Garrison could proceed with the
purchase of the firearms. [Id. at ¶ 12].
ATF Special Agent Allred contacted NICS, which confirmed that the
firearms transaction was denied because Mr. Garrison had previously
been adjudicated as a mental defective. [Id. at ¶ 13]. Mr. Garrison was
adjudicated as a mental defective on November 16, 2007, and again on
November 29, 2016. [Id. at ¶ 14]. On the ATF Form 4473 that Mr.
Garrison filled out, he answered “no” to the question asking him whether
he had ever been adjudicated as a mental defective or been committed
to a mental institution. [Id. at ¶ 15]. ATF Special Agent Allred
conducted additional research and learned that Mr. Garrison also had
two previous NICS denials, one in 2007, and another in 2014. [Id. at ¶
16].
On May 10, 2023, three ATF agents and a Henderson County
Sheriff’s Deputy went to Mr. Garrison’s apartment to inquire about the
firearms. [Id. at ¶ 17]. ATF Special Agent Allred knocked on the front
door and Mr. Garrison answered. [Id. at ¶ 18]. There was a strong
odor of marijuana coming from the apartment. [Id.]. Mr. Garrison
3
advised that he lived at the apartment with his 10-year-old child and his
girlfriend, Susan Dove. [Id. at ¶ 19].
ATF Special Agent Allred explained to Mr. Garrison that the
firearms he recently purchased at P&A should not have been sold to him.
[Id. at ¶ 20]. ATF Special Agent Allred asked Mr. Garrison if he was still
in possession of the firearms, and Mr. Garrison stated, “they are in my
gun safe.” [Id. at ¶ 21]. With Mr. Garrison’s consent, ATF Special
Agent Allred walked with Mr. Garrison to retrieve the firearms. [Id. at ¶
22].
Mr. Garrison led the agents into his bedroom where the gun safe
was located. Mr. Garrison inputted the code to the safe and unlocked
it. [Id. at ¶ 23]. There were eight firearms and ammunition in the safe,
including the Defendant Firearms and Ammunition at issue in this action.
[Id. at ¶ 24]. More specifically, the safe contained the following firearms
and ammunition: a Smith & Wesson M&P 57 5.7x28 mm pistol, a SCCY
CPX-1 9mm pistol, a Beretta PX4 Storm 9mm pistol, a Ruger 10/22 .22
caliber rifle, a Palmetto State Armory PA-15 rifle, an FN Herstal PS90
5.7x28 rifle, a Remington 1100 12 gauge shotgun, an Aero Precision x15
receiver, approximately 460 rounds of ammunition, and thirteen firearm
magazines that contained ammunition. [Id.].
4
ATF Special Agent Allred explained to Mr. Garrison that records
confirmed that he had been adjudicated as a mental defective and
therefore was not allowed to be in the possession of any firearms or
ammunition. [Id. at ¶ 25]. Mr. Garrison acknowledged that he had
been put into a mental hospital on two previous occasions. [Id. at ¶ 26].
Mr. Garrison also stated to the ATF agents that he smokes marijuana
daily. [Id.].
While ATF inventoried the firearms, Mr. Garrison walked outside
and spoke to Ms. Dove by telephone. [Id. ¶ 27]. Mr. Garrison indicated
to the ATF agents that some of the firearms belonged to Ms. Dove. [Id.].
ATF Special Agent Jason Brown spoke to Ms. Dove by telephone
and asked her which firearms belonged to her. [Id. at ¶ 28]. Ms. Dove
was unable to tell him. [Id.]. Ms. Dove could not name, describe, or
provide any information regarding the firearms that purportedly belonged
to her. [Id. at ¶ 29]. Instead, Ms. Dove told ATF Special Agent Jason
Brown to ask Mr. Garrison which firearms were hers. [Id. at ¶ 30]. ATF
seized all of the firearms and ammunition from Mr. Garrison’s safe. [Id.
at ¶ 31].
5
PROCEDURAL BACKGROUND
ATF timely initiated an administrative forfeiture action against the
firearms and ammunition that were seized from Mr. Garrison, including the
Defendant Firearms and Ammunition. [Id. at ¶ 32]. On July 11, 2023, ATF
received a claim from Ms. Dove, in which she claimed to be the owner of the
SCCY CPX-1 9mm pistol, the Beretta PX4 Storm 9mm pistol, the FN Herstal
PS90 5.7x28 mm rifle, and the 460 rounds of assorted ammunition. [Id. at
¶ 33].
On October 6, 2023, the Government filed a Verified Complaint for
Forfeiture In Rem, alleging that the Defendant Firearms and Ammunition
seized from Mr. Garrison on or about May 10, 2023, are subject to civil
forfeiture under 18 U.S.C. § 924(d)(1). [Doc. 1]. On October 11, 2023, the
Clerk issued a Warrant of Arrest In Rem for the Defendant Firearms and
Ammunition. [Doc. 2].
After the Government filed its Complaint and in accordance with Rule
G(4)(b) of the Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions, the Government provided direct notice of this action
to known potential claimants. Specifically, on October 17, 2023, the
Government mailed notice and a copy of the Complaint to Mr. Garrison and
Ms. Dove. [Doc. 4]. Additionally, in accordance with Supplemental Rule
6
G(4)(a), the Government provided notice by publication as to all persons with
potential claims to the Defendant Firearms and Ammunition by publishing
notice via www.forfeiture.gov for 30 consecutive days, beginning on
December 20, 2023. [Id.].
The Government has taken reasonable steps to provide notice to
known potential claimants, and the Government has otherwise complied with
the notice requirements set forth in Supplemental Rule G(4). During the
pendency of this action, no individual or entity has made a timely claim to the
Defendant Firearms or Ammunition. On March 6, 2024, the Government
filed a motion for entry of default. [Doc. 6]. On March 7, 2024, the Clerk
entered default. [Doc. 7].
DISCUSSION
Pursuant to the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”),
the Government has the initial burden of establishing by a preponderance of
the evidence that the defendant property is subject to forfeiture.
18 U.S.C. § 983(c)(1). A complaint must “state sufficiently detailed facts to
support a reasonable belief that the government will be able to meet its
burden of proof at trial.” Fed. R. Civ. P. Supp. R. G(2)(f). The Government
may obtain forfeiture of a firearm that was knowingly possessed by an
unlawful user of a controlled substance and/or was knowingly possessed by
7
a person who has been adjudicated as mental defective or who has been
committed to a mental institution. See 18 U.S.C. § 924(d)(1); 18 U.S.C. §
922(g)(3) and (g)(4).
Based upon the allegations of the Government’s Verified Complaint,
which are deemed admitted as true, the Court finds and concludes that the
Government has satisfied its burden of showing that the Defendant Firearms
and Ammunition are subject to forfeiture under 18 U.S.C. § 924(d)(1).
Additionally, the Government has taken reasonable steps to provide notice
to known potential claimants, and the Government has otherwise complied
with the notice requirements set forth in Supplemental Rule G(4).
No individual or entity has timely filed a claim to the Defendant Firearms or
Ammunition. Accordingly, after careful review, the Court concludes that the
entry of a default judgment is appropriate.
JUDGMENT
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
the Government’s Motion for Default Judgment of Forfeiture [Doc. 8] is
hereby GRANTED, and Judgment of Forfeiture is ENTERED in favor of the
United States against all persons and entities with respect to the Defendant
Firearms and Ammunition identified in the Government’s Complaint.
8
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that any
right, title, and interest of all persons to the Defendant Firearms and
Ammunition are hereby forfeited to the United States, and no other right, title,
or interest shall exist therein.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the
Bureau of Alcohol, Tobacco, Firearms and Explosives is hereby directed to
dispose of the Defendant Firearms and Ammunition as provided by law.
IT IS SO ORDERED.
Signed: March 18, 2024
Martifi Reidinger ee
Chief United States District Judge AS